Court affirmed the contributory negligence of claimant while enhancing compensation due to reevaluation of income and damages.

JUDGMENT

This appeal is filed by the claimant in OP(MV) No.377 of

2013 on the file of the Motor Accidents Claims Tribunal, Tirur, claiming enhancement of compensation and challenging the finding of 20% contributory negligence on the part of the claimant. The respondents herein are the respondents before the tribunal.

2. According to the appellant/claimant, on 06.11.2012 at about 5.00 p.m., while the claimant was riding his motorcycle bearing registration No.KL-53-J-TEMP-831 through Kozhikode – Palakkad National Highway, a bus bearing registration No.KL- 55-F-4242 driven by the second respondent in a rash and negligent manner hit against the motorcycle and as a result, the claimant sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ₹6,20,000/-.

3. Though notice was served on the respondents, the first and second respondents, the owner and the driver of the offending vehicle respectively, remained absent and were set ex parte before the tribunal. The third respondent - insurer filed a written statement admitting the insurance policy, disputing the liability and quantum of compensation claimed. In the additional written statement, the insurer contended that there was no negligence on the part of the driver of the offending vehicle. Before the tribunal, Exts.A1 to A42 and Exts.C1 and C2 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to negligence on the part of the second respondent and awarded a sum of ₹1,79,500/-, as compensation under different heads with interest @ 9% per annum from the date of petition till realization. The respondent insurer was liable to compensate 80% of the award amount with proportionate costs. Dissatisfied with the quantum of compensation awarded by the tribunal and challenging the reduction of 20% of the award amount towards negligence, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant, the learned counsel for the first respondent and the learned standing counsel appearing for the respondent insurer.

5. The second respondent – the driver of the offending vehicle was deleted from the party array vide order dated 06.07.2020 in I.A.No.1 of 2020 in the afore MACA, during the pendency of the appeal.

6. The learned counsel for the appellant submitted that the tribunal had found 20% contributory negligence on the part of the claimant, who was the rider of the motorcycle on the ground that he was not wearing a helmet. The learned counsel further submitted that the charge-sheet was drawn against the driver of the bus and that no evidence was adduced by the insurer to prove contributory negligence on the part of the rider of the motorcycle. It is true that no evidence was adduced by the insurer to prove that there was contributory negligence on the part of the rider/claimant in causing the accident.

Following are the injuries sustained to the claimant:

i. Head injury, EDH, SDH(R) Fronto Tempor Parietal region, ii. Lacerated wound of size 20x02x05 cm over scalp, iii. Parietal oedema iv. Fracture right temporal region

7. The tribunal found that the claimant would not have sustained the afore injuries, had he being wearing a helmet at the time of accident. Although there is no evidence that the claimant had contributed to the accident, if he had worn a helmet, the head injury could have been avoided. Therefore, I find that the tribunal had rightly found 20% contributory negligence on the part of the claimant and I find no reason to interfere